JUDGMENT : 1. The petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India for the following prayers. (A) This Hon’ble Court may be pleased to issue a writ of or in the nature of Certiorari or any other writ, order or direction quashing and setting aside award dated 2-5-2008 passed by the Presiding Officer, Labour Court No.2, Bhavnagar in Reference (L.C.B.) No.86 of 1989 – Annexure “A”. (B) Pending the admission, disposal and final hearing of this petition, this Hon’ble Court may be pleased to stay the effect, operation, implementation, execution of the award dated 2-5-2008 passed by the Presiding Officer, Labour Court No.2 in Reference (L.C.B.) No.86 of 1989 – Annexure “A”. (C) Such other(s) and further relief(s) which this Hon’ble Court may deem fit to be granted in the interest of justice. 2. The brief facts of the present case is as under:- 2.1 The respondent was working in Watch Stone Department of the petitioner – company since 01.01.1976. The respondent – workman filed a Statement of Demand before the Labour Court on the ground that she was serving with the petitioner since 09.01.1976 and after completion of 12 years of services, her services came to be terminated w.e.f. 02.05.1988 without issuance of any notice or without giving any opportunity of being heard. It is contended that without following the provisions of the Labour Laws and without paying any compensation to the workman, her services came to be terminated. According to the workman, she has written a letter to the employer requesting it to take her on services and also to pay entire amount. It is contended that since her demand was not accepted by the employer, she approached the Assistant Labour Commissioner and Assistant Commissioner has initiated conciliation proceedings. However, the said proceedings is failed, the Assistant Commissioner has made reference under the I.D. Act to the Labour Court. It is also contended that the workman was not employed after termination of her service by the employer. It is further contended that since the reference was pending, the employer cannot terminate her services without permission of the Court. The workman has prayed to reinstate with continuity of service and back wages. 2.2 The claim of the workman has been resisted by the petitioner herein denying all the contentions of the workman of the statement of demand. It is further contended that since the reference was pending, the employer cannot terminate her services without permission of the Court. The workman has prayed to reinstate with continuity of service and back wages. 2.2 The claim of the workman has been resisted by the petitioner herein denying all the contentions of the workman of the statement of demand. It is contended that the services of the workman was terminated after due process of law. It is also contended that the necessary departmental inquiry was conducted against her and the charge-sheet came to be proved, she has been dismissed from the services after making payment of her dues. It is further contended that the workman was remained absent on duty and, thereafter, after departmental inquiry, she came to be dismissed from the services. However, it is admitted that the workman was serving from 01.01.1976 in Watch Stone Department as a workman and she had remained absent unauthorizedly and when the employer has written several letters to the workman, she has not remained present. It is contended that due to her absentisum, ultimately, chargesheet came to be served w.e.f. 21.04.1988 and copy thereof was also given to the Union. It is contended that the necessary departmental inquiry was conducted on 24.04.1988 and none was present on behalf of the workman. It is also contended that thereafter, the representative of the Union was called and he was informed to see to that the workman remained present on 01.05.1988, however, none was present on their behalf and, therefore, the departmental inquiry was conducted ex-parte. It is also contended that considering absentisum of the workman, she came to be dismissed from the service. It is contended that on the same, the petitioner has filed approval application before the Tribunal and one month salary was also sent to the workman. It is contended that the workman is not entitled to any reliefs as sought for by her. 2.3 It is contended that the respective parties have led necessary evidence before the Labour Court and the Labour Court has passed the award in favour of the respondent. It is also contended by the petitioner that though the Labour Court has recorded the findings against the respondent that the findings of Inquiry Officer was not perverse and yet the Labour Court has passed the impugned award. It is also contended by the petitioner that though the Labour Court has recorded the findings against the respondent that the findings of Inquiry Officer was not perverse and yet the Labour Court has passed the impugned award. It is contended that the respondent has admitted the legality and validity of the inquiry conducted against her and, therefore, the Labour Court ought not to have granted the prayer in favour of the workman. It is contended that the Labour Court has clearly held that the respondent was negligent in performing her duty by not reporting on duty and yet it has substituted the order of dismissal with stoppage of three increments. It is contended that the Labour Court ought not to have interfered with the punishment awarded by the petitioner. It is contended that the direction issued by the Labour Court for reinstatement of the respondent with continuity of service and 30% back wages is not just and legal and it is erroneous one. It is contended that the Labour Court has committed material irregularity of law by treating the misconduct of absentisum to be very lightly. Regarding the discretion under Section 11-A of the Industrial Disputes Act, 1947 (hereinafter be referred to as the “I.D. Act.”), it is contended by the petitioner that this discretion is available only on existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court or the existence of any mitigating circumstances which requires the reduction of sentence or past conduct of the workman which may persuade the Labour Court to reduce the punishment. It is contended that in absence of any such factors existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the I.D. Act and reduce the sentence. It is contended that the impugned award of the Labour Court is not in consonance with the law and it deserves to be quashed and set aside. 3. Heard Mr. Jigar Patel, learned counsel for the petitioner and Mr. V.K. Singh, learned counsel for the respondent, at length, through video conferencing. 4. Mr. Patel, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the workman was dismissed after proper departmental inquiry since she was in habit of remaining absent without any leave. V.K. Singh, learned counsel for the respondent, at length, through video conferencing. 4. Mr. Patel, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the workman was dismissed after proper departmental inquiry since she was in habit of remaining absent without any leave. He has submitted that the workman has not challenged the findings of the Inquiry Officer and, therefore, the impugned award of the Labour Court in substituting punishment of dismissal by stoppage of three increments and the order of reinstatement is not legal and valid. He has submitted that while passing the impugned order of dismissal, on the very same day, the amount has been sent to the workman and, therefore, there was nothing remained to be paid. He has submitted that the observation of the Labour Court regarding disproportionate punishment is not proper. He has also submitted that since, the workman did not remain present in the departmental inquiry, no fault can be found on the part of the present petitioner. While referring to the impugned award of the Labour Court, the learned counsel for the petitioner has vehemently submitted that the Labour Court has accepted the departmental inquiry report and, therefore, the impugned award is erroneous one. He has submitted that during the pendency of this petition, the compliance under Section 17(B) of the I.D. Act has already been implemented and, therefore, the workman has adequately compassionate during pendency of this petition. He has submitted that Section 11A of the I.D. Act is not for being premium to the wrong doer. According to him, in the present case, since the workman was in habit of remaining absent, the reinstatement ought not to have granted by the Labour Court. He has also submitted that the back wages only can be granted wherein there is illegal termination. He has submitted that however, in the present case, there is no such illegal termination and, therefore, the order of back wages is nothing but a premium to the wrong doer. He has submitted that during the pendency of this petition, the workman has superannuated and, therefore, now, there is no question of any reinstatement. He has submitted that the Labour Court ought not to have granted the back wages. He has submitted that the last drawn salary has been paid to the workman till her superannuation. He has submitted that during the pendency of this petition, the workman has superannuated and, therefore, now, there is no question of any reinstatement. He has submitted that the Labour Court ought not to have granted the back wages. He has submitted that the last drawn salary has been paid to the workman till her superannuation. According to him, considering all these facts and circumstances of the case, the petition may be allowed. 4.1 Mr. Patel, learned counsel for the petitioner has relied upon the following decisions. (1) J. K. Synthetics Ltd Vs. K.P. Agrawal and Another, (2007) 2 SCC 433 ; (2) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya and others, (2013) 10 SCC 324 ; 5. Per contra, Mr. Singh, learned counsel for the respondent has vehemently submitted that under Section 11(A) of the I.D. Act, the Labour Court has been envisaged with discretionary powers to substitute its decision in the present case of punishment, if it comes to the conclusion that the punishment is not commensurated with the alleged misconduct of the workman. While referring to the documentary evidence on record, he has submitted that there is only one instance of remaining absent as per page no.42 of the petition and, therefore, the observation of the Inquiry Officer against the workman is not factually correct. He has submitted that the entire inquiry was completed within four days and no proper opportunity of being heard was given to the workman to defend herself. While referring to the cross-examination at Annexure – G of page no.41, he has submitted that as the departmental inquiry was not in consonance with the principles of the natural justice, it ought to have been held to be not justified. He has submitted that the Labour Court has not committed any error of facts and law in substituting the punishment of dismissal from the services to the stoppage of three increments with reinstatement and continuity of service and back wages. He has submitted that the impugned award of the Labour Court is just and proper and no interference is required by this Court. He has submitted that the decisions relied upon by the learned advocate for the petitioner is not applicable to the facts of the case. He has prayed to dismiss the petition. 5.1 Mr. Singh, learned advocate for the respondent has relied upon the following decisions. He has submitted that the decisions relied upon by the learned advocate for the petitioner is not applicable to the facts of the case. He has prayed to dismiss the petition. 5.1 Mr. Singh, learned advocate for the respondent has relied upon the following decisions. (1) Union of India and others Vs. Giriraj Sharma, AIR 1994 SC 215 ; (2) R.M. Parmar Vs. Gujarat Electricity Board, Baroda, 1982 (1) GLR 352 ; 6. In rejoinder, Mr. Patel, learned advocate for the petitioner has submitted that the Labour Court has not held that the departmental inquiry was illegal. He has submitted that when the Labour Court has not held departmental inquiry illegal, it ought not to have interfered with the punishment awarded to the workman. He has submitted that the decisions relied upon by the learned advocate for the respondent is not applicable to the factual aspects of the present case. 7. In the case of J. K. Synthetics Ltd (supra), the Apex Court has observed in paras 15, 17 and 18 as under :- 15. But the manner in which 'back-wages' is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 , this Court following Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 and Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC 363 held as follows : "A person is not entitled to get something only because it would be lawful to do so. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 , this Court following Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 and Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC 363 held as follows : "A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance." "Aalthough direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the courts realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched... The changes (were) brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalization, privatization and outsourcing, is evident. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of section 6- N of the U.P. Industrial Disputes Act.. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot therefore be the natural consequence. In G. M. Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 , this Court observed : "There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. In G. M. Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 , this Court observed : "There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year." 16. xxx xxx xxx 17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud, (2003) 2 SCC 212 , A. P. SRTC v. Abdul Kareem, (2005) 6 SCC 36 and Rajasthan SRTC v. Shyam Bihari Lal Gupta, (2005) 7 SCC 406 . 18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back- wages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. 7.1 It is pertinent to note that in the aforesaid decision, the Apex Court has also observed in paras 19 and 20 as under :- 19. But the cases referred to above, where back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc. 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc. 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back-wages etc. will be the same as those applied in the cases of an illegal termination. 8. In the case of R. M. Parmar (supra), while referring to the power of the Labour Court under Section 11(A) of the I.D. Act to reduce the penalty imposed by the Tribunal, the Apex Court has observed in para-6 as under :- 6…...The matter regarding imposition of penalty on employees (it was so realized by International Labour Organisation, an international body) could not be left solely to the discretion of the management even if the employee concerned is found to be guilty of the charge levelled against him, presumably because of the conditioned approach of the disciplinary authority with this inbuilt and inherent pro-employer-anti-employee bias. That is why in obeisance to the felt needs of the time it was considered necessary to entrust this most vital function to a neutral body. With the end in view that he employees were not treated more harshly than they deserved in the context of facts and circumstances of the case, and that the employee could get the protection of the Labour Court which could be trusted to make a just and fair approach, the provision was introduced by way of an amendment. It is a benevolent power conferred on the Labour Court and has to be exercised in the spirit in which the provision has been enacted in order to further the intendment and purpose of the legislation, Keeping aglow before the mental eye some very important dimensions of the matter, viz. : (1) There is widespread unemployment in our country and it is difficult to secure a job to earn enough to keep body and soul together unlike in developed countries. : (1) There is widespread unemployment in our country and it is difficult to secure a job to earn enough to keep body and soul together unlike in developed countries. (2) The State does not provide social benefits like unemployment allowance to enable a discharged employee to sustain himself and his family to some extent, as is being done in the developed countries. (3) In imposing punishment on an erring employee an enlightened approach informed with the demands of the situation and the philosophy and spirit of the times requires to be made. It cannot be a matter of the ipse dixit of the disciplinary authority depending on his whim or caprice. (4) Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the 'end' in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered - 1. In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath. 2. The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment. And the approach to be made is the approach parents make towards an erring or misguided child. 3. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of them. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault. 4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide. 5. 4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide. 5. When different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned it would be absolutely unsafe to retain him in service the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty why a lesser penalty cannot be imposed. 6. It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned. 7. When the disciplinary proceedings end in favour of the employee the employer has often to pay back wages say for about 5 years without being able to take work from the employee concerned. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one. 8. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one. 8. Every harsh order of removal from service creates bitterness and arouses a felling of antagonism in the collective mind of the workers and gives rise to a feeling of class conflict. It does more harm than good to the employer as also to the society. 9. Taking of a petty article by a worker in a moment of weakness when he yields to a temptation does not call for an extreme penalty of dismissal from service. More particularly when he does not hold a sensitive post of trust (pilferage by a cashier or by a storekeeper from the stores in his charge, for instance, may be viewed with seriousness. A worker brought up and living in an atmosphere of poverty and want when faced with temptation, ought not to, but may, yield to it in a moment of weakness. It cannot be approved, but it can certainly be understood particularly in an age when even the rich commit economic offences to get richer and do so by and large with impunity. (And even tax evasion or possession of black money is not considered to be dishonourable by and large). A penalty of removal from service is therefore not called for when a poor worker yields to a momentary temptation and commits an offence which often passes under the honourable name of Kleptomania when committed by the rich. The Labour Court in exercising its power to reduce the penalty has to inform itself of these considerations and play the role assigned to it by its creator loyally and faithfully and in harmony with the enlightened spirit which permeates the legislation. 9. In the case of Union of India (supra), considering the facts of the case that there was overstaying leave period by the employee for just 12 days, punishment of dismissal was treated to be harsh and disproportionate. Further, in that case, the order for quashing the punishment and granting of reinstatement in service with monetary benefit of the High Court was affirmed. 10. Further, in that case, the order for quashing the punishment and granting of reinstatement in service with monetary benefit of the High Court was affirmed. 10. Learned advocate for the petitioner has relied upon para-38.4 of the decision of the Supreme Court In the case of Deepali Gundu Surwase, (supra) for his submission that while exercising the powers under Section 11-A of the I.D. Act, the Labour Court / Industrial Tribunal has discretion not to award full back wages. The observation made in para-38.4 is as under :- “38.4 The cases in which the Labour Court / Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee / workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court / Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.” 10.1 It is worthwhile to refer to the entire paragraphs of 38, 38.1 to 38.7 which read as under :- 38. The propositions which can be culled out from the aforementioned judgments are: 38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. 38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd v. Employees, (1979) 2 SCC 80 . 38.7 The observation made in J. K. Synthetics Ltd Vs. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd v. Employees, (1979) 2 SCC 80 . 38.7 The observation made in J. K. Synthetics Ltd Vs. K. P. Agrawal and Another, (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 11. Thus, from the aforesaid decisions, it is crystal clear that in the case of wrongful termination of service, reinstatement with continuity of service is normal rule regarding the back wages. It is for the workman to plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. 12. Having considered the contentions raised by the learned counsel for both the parties and the decisions referred to hereinabove and the facts of the case, it appears that there is no dispute regarding the relationship between the parties. It is also an undisputed fact that the workman was working with the petitioner since 1976 and after long time, her service came to be terminated w.e.f. 1988. The only question is regarding the decision of the Labour Court substituting the order of punishment of dismissal from the service by way of imposing withholding of stoppage of three increments permanently and in directing reinstatement with continuity of service and back wages of 30%. On perusal of the record which consists of issuance of charge-sheet on 21.04.1988 at Annexure – E, it appears that as per the averments made in the charge-sheet, the workman was on duty on 31.08.1987 and since then, she was not reported in duty. On perusal of the record which consists of issuance of charge-sheet on 21.04.1988 at Annexure – E, it appears that as per the averments made in the charge-sheet, the workman was on duty on 31.08.1987 and since then, she was not reported in duty. It is also averred therein that her maternity leave was completed on 12.01.1988 and, thereafter, she came on duty on 13.01.1988 just for two hours and, thereafter, she was not reporting on duty and has not submitted her report. As per the averments made in the said charge-sheet, the workman was informed by letters dated 21.03.1988 and 25.03.1988 and she was informed that her leave application dated 13.03.1988 was rejected and she was directed to report on duty immediately. However, the workman did not report on duty. It is also averred therein that she was remained absent for ten days without any prior sanctioned of the leave and thus, committed a breach of Rule 24f of the Model Administrative Rules which is breach of her part. As per the charge-sheet, the workman was informed that in the departmental inquiry, she has to remain present on 24.04.1988 at 3.30 p.m. before personnel manager. Thus, it appears that the workman was on maternity leave and she did not report on duty, thereafter. It also appears that the charge-sheet came to be issued on 21.04.1988 and the service of the workman came to be terminated by departmental inquiry dated 24.04.1988. 13. At this juncture, it is pertinent to referred to the deposition of the workman, wherein, in chief-examination, she has narrated that whenever, she went to the office of the employer, she was not permitted to resume duty and she was informed that as the case has been filed, she would not permit to join the duty. According to her version, she has not received any notice during her service. She has deposed that from 14.03.1988 till 01.05.1988, she was under treatment of the doctor and she has informed the same to the employer, but without affording any opportunity, the departmental inquiry was conducted which needs to be quashed and set aside. She has stated that she has not received any letter dated 25.03.1988. In her cross-examination, she has admitted that she joined service in the year 1976 and there was a Union through which every workmen were making representations. She has stated that she has not received any letter dated 25.03.1988. In her cross-examination, she has admitted that she joined service in the year 1976 and there was a Union through which every workmen were making representations. She has admitted that ESI Act (Employment State Insurance Act) is applicable to the institution and she had not made any complaint to the same. She has specifically stated in her cross-examination that from 13.03.1988 till 01.05.1988, she was on medical leave and she has taken treatment from ESI and she has submitted all the reports to the institution. She has denied the suggestion that she was absent since 13.03.1988 without any leave. She has denied the suggestion that the institution has issued notice to her on 21.04.1988 to resume duty. She has admitted that vide notice dated 21.04.1988, the departmental inquiry was initiated against her and she did not remain present and she was dismissed from the service on 02.05.1988 due to her absent. 14. It appears from page No.42 at Annexure – F that various letters have been issued to the workman. It also appears from page No.47 of the petition that the workman has filed the complaint through the Union and has submitted that since, she was not keeping well and she has not in a position to join the duty and as and when she was keeping well, she would report herself on duty. Further, it appears from page No.48 of the petition that the petitioner has sent a letter to the workman informing her to join duty immediately and in case of failure, the necessary departmental inquiry has been initiated against her. It appears from page No.48 that the said letter was sent to the workman through U.P.S.C and not by registered post A.D. regarding findings of the inquiry officer as well as reasons and orders of dismissal. From the findings at page No.49 to 52, it appears that after narrating the facts of her maternity leave and, thereafter, not remaining present and even issuance of various correspondence, ultimately, the order of dismissal has been passed. 15. From the findings at page No.49 to 52, it appears that after narrating the facts of her maternity leave and, thereafter, not remaining present and even issuance of various correspondence, ultimately, the order of dismissal has been passed. 15. On perusal of the impugned award of the Labour Court, it is crystal clear that while affirming the departmental inquiry and non-presence of the workman and her absentisum, the Labour Court has, ultimately, come to the conclusion that considering the non-absentisum for a short period and as non-issuance of the show-cause notice before imposing punishment of dismissal, the Labour Court has observed that the ultimate punishment is not commensurated with the alleged misconduct on the part of the workman. It also appears from the award that the Labour Court has substituted the punishment of dismissal and has imposed stoppage of three increments with permanent effect and order of reinstatement to the workman. Now, considering the aforesaid materials placed on record, it clearly transpires that the employer has not sent any notice to the workman through registered post A.D. it appears that earlier the workman was on maternity leave and, thereafter, she has applied for medical leave which came to be disallowed. But, the fact remains that instead of sending the notice of initiation of show-cause notice and directing the workman to join the duty, which has been sent through U.P.S.C., no documentary evidence regarding sending the said notice to the workman through the U.P.S.C. has been produced by the petitioner herein before the Labour Court. It also appears from the record that before passing the order of dismissal, no notice whatever has been issued to the workman for providing opportunity to put her case against the proposed order of dismissal. Further, the workman has applied for leave on the grounds of illness. Of course, which came to be rejected. However, there is no other evidence of absentisum in past. Therefore, the observations made by the Labour Court that the punishment of dismissal is not commensurated with the alleged misconduct of absentisum by the workman. Under the facts and circumstances of the case, it is crystal clear that the observations made by the Labour Court regarding this fact is sustainable in the eyes of law. Therefore, the award of the Labour Court imposing lesser punishment i.e. stoppage of three increments with permanent effect in place of dismissal, is legal and valid. 16. Under the facts and circumstances of the case, it is crystal clear that the observations made by the Labour Court regarding this fact is sustainable in the eyes of law. Therefore, the award of the Labour Court imposing lesser punishment i.e. stoppage of three increments with permanent effect in place of dismissal, is legal and valid. 16. It is pertinent to note that the workman has not challenged the proceedings of the departmental inquiry. It is also crystal clear that the Labour Court has upheld the legality of the departmental proceedings. It has also observed by the Labour Court that the workman has remained absent since there is no challenged to the departmental inquiry and the fact that the workman has not produced any evidence. Now, it is well settled that the payment of back wages is not automatic. It needs some sort of evidence. However, there is no evidence worth the name that the workman was unemployed during the interregnum period. Therefore, the order of the Labour Court in granting the back wages at the rate of 30% is not legal and valid. It needs to be quashed and set aside. Except this, the order of reinstatement with continuity of service as well as stoppage of three increments with permanent effect needs to be upheld. It is needless to say that during the pendency of this petition, the workman has retired from the services and, therefore, whatever benefit is available to the workman, after her retirement, needs to be granted to her due to the order of reinstatement with continuity of service. It is needless to say that if during the pendency of this petition, any compliance is made to Section 17-B of the I.D. Act, then, in that case, the amount needs to be adjusted to whatever amount is liable to be paid to the workman for reinstatement along with continuity of service. 17. In view of the aforesaid discussions, the present petition deserves to be partly allowed. Accordingly, the petition is partly allowed. The impugned award dated 02.05.2008 passed by the Presiding Officer, Labour Court No.2, Bhavnagar in Reference (L.C.B.) No. 86 of 1989, so far as it relates to granting of 30% back wages is concerned, the same is set aside. The remaining part of the award regarding reinstatement and continuity of service is hereby confirmed. Accordingly, the petition is partly allowed. The impugned award dated 02.05.2008 passed by the Presiding Officer, Labour Court No.2, Bhavnagar in Reference (L.C.B.) No. 86 of 1989, so far as it relates to granting of 30% back wages is concerned, the same is set aside. The remaining part of the award regarding reinstatement and continuity of service is hereby confirmed. 17.1 Since, the workman has retired in the year 2015, the employer has to comply with the award passed by the Labour Court in its true spirit and needs to be granted pensionary benefits to the workman herein in accordance with law. However, it is made clear that after the date of retirement, the employer need not to comply with the provisions of Section 17B of the I.D. Act. The amount, if any, paid by the petitioner to the respondent under Section 17B of the I.D. Act, during the pendency of this petition, be adjusted towards the arrears of amount which may be liable to be paid to the workman. 18. Rule is made absolute to the aforesaid extent. Interim relief, if any, stands vacated forthwith. No order as to costs.